KHUU [2026] WASC 343

[2026] WASC 343 Page 1 JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA IN CIVIL CITATION : KHUU [2026] WASC 343 CORAM : HOWARD J HEARD : 13 AUGUST 2026 DELIVERED : 18 AUGUST 2026 FILE NO/S : CIV 1616 of 2026 BETWEEN : MINH DUC HUNG KHUU Plaintiff by Ex Parte Catchwords: Administrative Law - Judicial Review - Application for a review order pursuant to O 56A of the Rules of the Supreme Court 1971 (WA) and s 36 of the Magistrates Court Act 2004 (WA) - Application for interim stay pending the resolution of the review order application - Application for leave to issue subpoenas - Whether the Magistrate made an arguably reviewable error - Where no reviewable error has been established - Application for review order dismissed - Where remaining applications fall away - Application for interim stay dismissed - Application for leave to issue subpoenas dismissed Legislation: Rules of the Supreme Court 1971 (WA) Magistrates Court Act 2004 (WA) Result: Applications dismissed -- 1 of 12 -- [2026] WASC 343 Page 2 Category: B Representation: Counsel: Plaintiff by Ex Parte : In person Solicitors: Plaintiff by Ex Parte : In person Case(s) referred to in decision(s): Bajaj v Magistrate Teveor Darge [2021] WASCA 218 Emanuel Exports Pty Ltd v Department of Primary Industries and Regional Development [2023] WASCA 36; (2023) 375 FLR 126 Rayney v AW [2009] WASCA 203 Saldanha v Fujitsu [No 2] [2011] WASC 360 -- 2 of 12 -- [2026] WASC 343 HOWARD J Page 3 HOWARD J: 1 On 13 August 2026, I heard a number of applications brought by Mr Khuu. At the conclusion of the hearing, I made orders dismissing each of those applications. These are my reasons for doing so. 2 The principal application made by Mr Khuu was by originating motion filed on 11 May 2026 (Originating Motion) pursuant to O 56A of the Rules of the Supreme Court 1971 (WA) (RSC) and s 36 of the Magistrates Court Act 2004 (WA). 3 Mr Khuu, prior to the hearing before me, made and filed affidavits on: 1. 21 July 2026; and 2. 7 August 2026. 4 My chambers directed Mr Khuu to bring his Originating Motion to the attention of the City of Vincent. Counsel for the City also appeared as a matter of courtesy to the Court. 5 Mr Khuu was assisted at the hearing by a qualified interpreter. 6 In addition to the Originating Motion, as will be seen, I had before me: 1. a Chamber Summons dated 21 July 2026 (Chamber Summons);1 2. an 'Urgent Updated Minute of Proposed Orders' filed 12 August 2026;2 and 3. a notice of an appeal from the decision of the Registrar made 12 August 2026.3 7 The Originating Motion sought a review order in relation to a decision of her Honour, Magistrate Campione made on 16 April 2026 (review order). 1 Folio 12. 2 Folio 25. 3 This, after the hearing, was filed and became Folio 29. -- 3 of 12 -- [2026] WASC 343 HOWARD J Page 4 8 Before turning to the grounds on which the review order was sought, I should give the short background to the decision made by the Magistrate on 16 April 2026. 9 The City of Vincent is prosecuting Mr Khuu in the Magistrates Court at Perth before Magistrate Campione.4 10 There has been one day of trial (on 19 March 2026) and the City has completed its case. The trial remains part heard. Although it was not entirely clear in the hearing before me, I understand that the trial has been listed for a further day this November. 11 On 16 April 2026, the Magistrate heard Mr Khuu's application for an order permanently staying the prosecutions. 12 The learned Magistrate identified that Mr Khuu relied on the following grounds: 1. the notice issued by the City which was 'foundational' to the prosecution was a legal nullity and so the entire prosecution was void ab initio;5 2. misconduct by the City's solicitor;6 3. the City had acted in bad faith (by 'administrative malice') and had sought to apply a law which did not exist to maintain the prosecution;7 and 4. the City had suppressed evidence which had caused Mr Khuu to be unable to obtain a fair trial.8 13 The Magistrate gave short reasons on 16 April 2026, and I have considered those reasons from the transcript. The grounds in the Originating Motion 14 The grounds stated in Mr Khuu's Originating Motion are as follows: 4 Matters PE 60371 of 2025 and PE 60372 of 2025. 5 Magistrates Court transcript of 16 April 2026 (Magistrates Court transcript) page 22. 6 Magistrates Court transcript 22. 7 Magistrates Court transcript 22. 8 Magistrates Court transcript 23. -- 4 of 12 -- [2026] WASC 343 HOWARD J Page 5 Grounds of application The grounds of the application are: The Applicant seeks a Review Order against the interlocutory decision of the learned Magistrate dated 16 April 2026 on the basis that the court committed a profound Jurisdictional Error and an Error of Law on the Face of the Record by failing to find that the Prosecution is a malicious Abuse of Process. Ground 1: Error of Law — Failure to Apply the Doctrine of Jurisdictional Estoppel 1. The learned Magistrate erred in law by refusing to stay the proceedings where the Prosecutor (City of Vincent) is completely estopped from asserting municipal regulatory control over the dividing fence. 2. The Applicant placed formal written proof before the court (Exhibit MH-9 / Tab C9) showing that on 11 November 2020, the City formally declared it had no jurisdiction over the structure. 3. Allowing a public authority to reverse its jurisdictional boundary solely to launch a punitive prosecution constitutes an error of law. Ground 2: Jurisdictional Error — Mischaracterisation of a Known Civil Trespass 1. The learned Magistrate failed to evaluate conclusive survey evidence from both parties (Tabs A and B) proving the structure sits up to 180mm inside the Applicant's title line. 2. A local government cannot issue a Notice of Breach under a Fencing Local Law for a structure that is structurally a civil trespass. The underlying notice is a nullity, and the Magistrate exceeded their jurisdiction by keeping the trial alive. Ground 3: Failure to Consider Material Extraneous Purpose (The 72-Hour Retaliation Window) 1. The learned Magistrate failed to accord procedural weight to uncontroverted evidence that the CEO issued a total communication block exactly 72 hours after the Applicant filed formal statutory bias objections under Part 9 of the Local Government Act 1995 (Exhibits MK-54, MK-55, and MK-56). 9 Tab C is an extract of the Magistrates Court transcript and appeared at PDF pages 73 and following of Mr Khuu's affidavit filed 21 July 2026: Folio 15. -- 5 of 12 -- [2026] WASC 343 HOWARD J Page 6 2. The prosecution was launched and maintained for an improper, collateral purpose to silence a whistleblower and conceal internal compliance fraud. (emphasis in the original) Relevant principles for a review order 15 I have proceeded on the basis that Mr Khuu is a person aggrieved by the order made on 16 April 2026 within s 36(1)(c)(i) and, or, (ii) of the Magistrates Court Act. 16 The powers or outcomes available to the Court on the application for a review order are set out in O 56A r 3(2) of the RSC. 17 I have taken the following applicable principles from Rayney v AW:10 1. the power in s 36 of the Magistrates Court Act is a judicial review power; 2. s 36(3), when read with s 36(1), provides the source and scope of this Court's power to make a review order; 3. judicial review as a supervisory function is distinct from an appeal or other review of the merits; 4. judicial review concerns itself solely with the legality of decisions and the focus is on jurisdictional errors; 5. the common law grounds of judicial review applicable to courts and analogous tribunals are significantly narrower than the grounds of review of decisions of administrative tribunals; 6. the purpose of s 36 is to replace, and provide a statutory alternative to, the common law relating to judicial review of the acts or omissions of officers of the Magistrates Court; 7. a review order, like an order nisi, is an order to show cause why the relief in s 36(4) should not be granted; 8. satisfying the threshold for an error of a type identified in s 36(1)(c) is a precondition to the exercise of the power to grant a review order. Before a review order can be made the decision- 10 Rayney v AW [2009] WASCA 203 [25] - [27], [31] (McLure JA for the Court). -- 6 of 12 -- [2026] WASC 343 HOWARD J Page 7 maker must have made (at least) an arguably reviewable error;11 and 9. the expression 'that is just' in s 36(3) empowers this Court in appropriate circumstances to decline to make a review order even if the threshold test of a reviewable error has been established. The power is, in that limited sense, discretionary. 18 Further, the Court of Appeal in Bajaj v Magistrate Trevor Darge said: [48] The threshold for determining whether a review order should be made has sometimes been expressed as demonstration of an arguable case and sometimes as a case with a reasonable prospect of success.12 For present purposes, the question is whether the appellant demonstrated a case with a reasonable prospect of success … (emphasis added) Ground 1 19 It was not plain to me from considering Ground 1 and the Magistrates Court transcript that the Magistrate had, in fact, made her decision on the basis asserted in Ground 1. By that I mean that while the Magistrate did refuse to stay the proceedings, her Honour did not do so on the basis asserted in Ground 1. 20 In exchanges with Mr Khuu at the hearing, it became apparent that he accepted that: 1. the Magistrate had allowed him to cross-examine a City officer about the matters asserted in his Ground 1; 2. the Magistrate had not ruled on his submission or proposition that the City was prevented from prosecuting the matter as asserted in Ground 1; and 3. he could raise those matters on the resumption of the trial for the Magistrate's consideration. 21 On that basis, I am not satisfied that the Magistrate made a decision on the basis asserted in Ground 1. Consequently, I do not 11 See also Bajaj v Magistrate Trevor Darge [2021] WASCA 218 [47] (Beech & Vaughan JJA); Emanuel Exports Pty Ltd v Department of Primary Industries and Regional Development [2023] WASCA 36; (2023) 375 FLR 126 [21] (Buss P, Mitchell & Beech JJA). 12 See, for example, the authorities referred to in Saldanha v Fujitsu [No 2] [2011] WASC 360 [61]: this is the footnote in the original. -- 7 of 12 -- [2026] WASC 343 HOWARD J Page 8 consider that her Honour made that reviewable error as asserted, whether on an arguable basis or otherwise. So, in my view, Mr Khuu could not demonstrate an argument which had a reasonable prospect of success. 22 Consequently, I did not make a review order based on Ground 1. 23 If I am wrong and Ground 1 did disclose an arguable reviewable error, then I do not consider that Mr Khuu could have satisfied the threshold of showing there were reasonable prospects of him succeeding to obtain an order setting aside the Magistrate's decision on Ground 1 at this point in the trial in the Court below. 24 It seems to me that, if such an arguable reviewable error had been made as put, there were very sound, discretionary reasons as to why any order of this Court should await the ultimate determination of the prosecution. The resulting bifurcation of the trial would be, in my view, a very powerful factor against the grant of any further order at this time, such that Mr Khuu did not have reasonable prospects of obtaining such an order based on Ground 1. Ground 2 25 On its face, it appeared that Mr Khuu, by his Ground 2, was essentially asserting an error of fact on the part of the Magistrate. 26 Mr Khuu accepted in the hearing that he was asserting an error of fact by Ground 2. 27 Without more, such an asserted error is not a reviewable error under s 36 of the Magistrates Court Act. 28 In those circumstances, clearly, Mr Khuu was not asserting an error which had a reasonable prospect of success. I did not grant a review order based on Ground 2. Ground 3 29 On its face, Ground 3 appeared to assert some factual, or weighting, error on the part of her Honour. That would not give rise to an arguable reviewable error. 30 However, as I understood Mr Khuu's submissions on Ground 3 at the hearing, he was complaining about the City refusing to provide him -- 8 of 12 -- [2026] WASC 343 HOWARD J Page 9 with certain documents which he considered were necessary for his defence; and this had rendered his trial unfair. 31 It is not entirely clear to me that these arguments about the connection between documents he was seeking and a fair trial were put by Mr Khuu to the Magistrate before her Honour's determination on 16 April 2026. 32 It would obviously have presented difficulties for Mr Khuu if he had not sought the stay on the basis which he now contended showed a reviewable error on the Magistrate's part. 33 However, as I said in the hearing, I have assumed, favourably to Mr Khuu, that he had made that argument and raised those factual matters before the Magistrate and that her Honour had ruled against him. 34 What is plain from the Magistrates Court transcript, however, is that the Magistrate considered that the prosecution to that point was not an abuse of process and, further, that Mr Khuu had, again to that point, received a fair trial. 35 It was difficult, in those circumstances, for me to identify what the arguable reviewable error was that Mr Khuu was asserting by Ground 3. Rather, it appeared that, on my assumption, Mr Khuu had made his argument and it had been rejected by the Magistrate from a position where, as trial judge, she could accurately assess the merits of the submission. 36 In those circumstances, I did not consider that Mr Khuu had identified an arguable reviewable error nor, consequently, that he had any reasonable prospects of establishing such a reviewable error. 37 If I am wrong and Ground 3 did disclose an arguable reviewable error then, for similar reasons to those in [23] - [24] above, I do not consider that Mr Khuu could have satisfied the required threshold. 38 For the above reasons, I did not make a review order based on Ground 3. -- 9 of 12 -- [2026] WASC 343 HOWARD J Page 10 Disposition of the Originating Motion 39 For the above reasons, I made an order that Mr Khuu's Originating Motion be dismissed.13 Mr Khuu's other applications 40 There were, essentially, two further applications that Mr Khuu had brought which were before me at the hearing. 41 The first was his seeking an 'urgent interim stay' of the trial in the Magistrates Court by proposed Order 1 of the Chamber Summons.14 42 The Chamber Summons sought an order pursuant to s 36(5) of the Magistrates Court Act, or in the inherent jurisdiction of this Court, to stay the prosecution to allow for the determination of the Originating Motion. 43 As I dismissed the application for a review order as sought by the Originating Motion, there was no basis remaining for any stay of the prosecutions. 44 So, for the avoidance of doubt, I made an order dismissing the Chamber Summons.15 45 The second group of applications centred on Mr Khuu seeking leave to issue subpoenas against various people to support his Originating Motion. 46 Put broadly, again, with the dismissal of the Originating Motion the question of issuing any subpoenas also fell away. 47 However, for the avoidance of doubt, I will identify that it appeared that Mr Khuu had made applications for leave to issue subpoenas by: 1. an application filed 25 June 2026;16 and 2. proposed Order 2 of the Chamber Summons.17 13 Folio 27. 14 Folio 12. 15 Folio 26. 16 Folio 7. 17 Folio 12. -- 10 of 12 -- [2026] WASC 343 HOWARD J Page 11 48 The application of 25 June 2026 went before a Registrar of this Court, and Mr Khuu sought to advance (or expand) that application with an aide-mémoire filed on 6 August 2026.18 It is not clear whether Mr Khuu was still seeking the issuance of one subpoena as per the face of the application dated 25 June 202619 or, rather, the issuing of many more subpoenas as per his aide-mémoire. 49 The day before the hearing in front of me, Acting Registrar Hill heard and dismissed Mr Khuu's application for leave to issue the subpoena by his application dated 25 June 2026.20 It appears from the form of the order made by the Registrar that, understandably, he had dismissed the application for one subpoena as per Mr Khuu's application of 25 June 2026. 50 On the morning of the hearing before me, my chambers received an appeal notice from Mr Khuu under O 60A r 5(3) seeking to overturn the order made by Acting Registrar Hill the day before. 51 It had not been filed at the time of the hearing, but Mr Khuu undertook to file the appeal notice and, after the hearing, did so.21 52 As said above, the only possible purpose for the issuing of any subpoena would be to support or further Mr Khuu's Originating Motion. 53 With the dismissal of Mr Khuu's Originating Motion, the question of leave to issue subpoenas (by whichever procedural mechanism) fell away. That is, whether I was hearing Mr Khuu's application for a subpoena dated 25 June 2026 afresh on an appeal, or an expanded application which may have been agitated before the Registrar by reference to Mr Khuu's aide-mémoire afresh on an appeal, or by Order 2 of Mr Khuu's summons of 21 July 2026, there was no basis to grant Mr Khuu leave to issue any subpoenas. 54 I made orders, again for the avoidance of doubt, to make plain the remaining application/s for leave to issue subpoenas,22 and, or the appeal from the dismissal order made by Acting Registrar Hill,23 should be dismissed. 18 Folio 18. 19 Folio 7. 20 Folio 24. 21 This became Folio 29. 22 Folio 26. 23 Folio 28. -- 11 of 12 -- [2026] WASC 343 HOWARD J Page 12 I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia. IF Associate to the Hon Justice Howard 18 AUGUST 2026 -- 12 of 12 --